The story of Aadhaar is a case of how bad law produces bad outcomes. It was first created only to enable people who exist, needed help from society, to be able to identify themselves to receive benefits. It was not intended to be an Identity system though that was what was claimed. After 2014, its use was recklessly expanded as an Identity system and made all-pervasive even though there were no protections against misuse. The whole thing was a technocratic exercise. The formulation of the rules was done by the IAS bureaucracy – who despite being steeped in Constitutional law in Mussoorie, chose to ignore it. Had they drafted the rules with these protections in mind, we would not have this lawsuit, and would not have this judgement.
From a purely legal perspective. the majority judgement is flawed even though it rolls back a number of cases of UIDAI overreach. Only Justice Chandrachud makes legal sense.
Nevertheless, here we are. Thanks to this thoughtless executive overreach that is now shown to have violated the Constitution, the use of the system by banks and payments companies, who relied on the law as they found it, has been made either uncertain or difficult.
So what happens now? Either the NDA can amend the Constitution – which would be unconscionable and so outrageous that no one would do it. Or, ask the UIDAI to work with banks and Fintechs -and members of civil society – to enable speedy financial inclusion by putting checks and balances without vitiating the prospects for these businesses.
Indeed after the Airtel incident the RBI had taken charge of the situation and had started to put these controls in place. These need to be part of the UIDAI and Banking Regulation Act – not in some rules – so that it gets proper Parliamentary scrutiny. However flawed our Parliament is, it is the constitutional law making body.
The other way is to enable institutions that can use existing digital footprint to enable people to access these instruments. This is what the likes of Atom, Monzo and Marcus use in the UK – which does not have a UID. The problem is only the financial elite leave a digital footprint and address checking in India is rudimentary to non-existent.
Bad law leads to bad outcomes.